In a ruling that could significantly impact how New Jersey businesses defend themselves in consumer disputes, the New Jersey Supreme Court has set a higher bar for proving that a company acted in line with its “habit or routine practice.” The decision, issued in Gerald Fazio Jr. v. Altice USA (A-21-24/089744) on July 9, 2025, emphasizes that companies must provide specific, detailed, and consistent evidence when claiming they followed standard procedures in their dealings with customers.
The unanimous opinion, written by Justice Douglas Fasciale, clarified that under New Jersey Rule of Evidence 406, a business cannot rely on general statements or assumptions to prove it acted according to a regular practice. Instead, the Court requires what it called a “high degree of specificity” to create a rebuttable presumption that a business followed its established process in a given case. This ruling will likely influence not only arbitration disputes but also a wide range of consumer protection and contract litigation across the state.
The case originated when Gerald Fazio Jr., a man living with quadriplegia, filed a complaint against Altice USA after being denied entry to one of its retail stores in 2021 for not wearing a face mask. Fazio, who cannot wear a mask due to medical reasons, alleged that store employees discriminated against him and violated the New Jersey Law Against Discrimination by refusing to accommodate his condition and calling the police. His complaint sought damages for emotional distress and alleged harassment.
In response, Altice moved to dismiss the case and compel arbitration, arguing that Fazio had agreed to arbitration clauses contained in a Customer Service Agreement (CSA). The company claimed that it routinely emailed customers a copy of the CSA after account creation, which supposedly included the arbitration terms. Altice submitted an affidavit from a senior executive describing this as a standard business practice.
However, the plaintiff countered that he never received such an email or saw any mention of arbitration when signing up for service. The initial trial court sided with Altice, finding that Fazio’s continued use of his mobile service implied consent to the CSA. The Appellate Division upheld that ruling, even though Altice could not produce any record showing the agreement had actually been sent to Fazio’s email.
When the case reached the Supreme Court, the justices unanimously reversed. Justice Fasciale made it clear that Altice’s broad descriptions of its internal procedures were not enough to establish that an email containing the CSA had been sent in this particular instance. He wrote that a company seeking to invoke evidence of “habit or routine practice” must demonstrate a consistent, specific behavioral pattern—one that operates “semi-automatically” in response to a particular situation.
The Court explained that under N.J.R.E. 406(a), evidence of a routine practice can indeed be admissible to prove conformity, but only when the business can show a detailed, repeated, and clearly defined process that leaves little room for variation. General claims or vague affidavits, the Court said, do not meet this standard. In Altice’s case, the affidavit failed to describe exactly how service agreements were routinely delivered to customers—such as which employees were responsible, what specific steps were taken, and how the process was verified. Without those details, the Court ruled, there was no proof of a genuine business habit or routine.
“The degree of specificity required to establish a business’s habit or routine practice is not a minor detail,” Fasciale wrote. “Without that specificity, there can be no presumption that a company acted in accordance with that practice.”
Because Altice could not prove that it had emailed the customer service agreement to Fazio, the Court declined to consider whether he had ever agreed to arbitration or waived his right to a jury trial. The decision underscores that businesses seeking to enforce arbitration clauses—or any contractual term—must be prepared to show not only that the practice exists, but that it was followed in the individual case at hand.
The ruling also sends a broader message about the importance of transparency and documentation in consumer relationships. As more transactions occur electronically, companies are increasingly relying on digital communications to deliver contracts and service terms. The Court’s decision makes clear that merely having a policy is not enough—businesses must maintain verifiable systems that demonstrate those policies are consistently and specifically applied.
For consumers, the ruling reinforces legal protections against being bound by arbitration agreements or other contractual terms they were never properly notified of. For businesses, it serves as a warning that courts will demand precise and well-documented evidence when questions arise about how contracts are delivered and consent is obtained.
The decision in Fazio v. Altice USA stands as one of the year’s most consequential opinions for New Jersey’s business and legal communities, reshaping how evidence of routine practice can be used in court. It highlights the judiciary’s growing insistence on clarity, specificity, and accountability in the increasingly digital landscape of commerce.
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